PEOPLE v. McCOY (2012)

Defendant appeals from a judgment convicting him following a nonjury trial of burglary in the second degree (Penal Law § 140.25[1][d] ), robbery in the second degree (§ 160.10[2][b] ), and criminal possession of a weapon in the third degree (§ 265.02[1] ). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference” (People v. Van Akin, 197 A.D.2d 845, 845, 602 N.Y.S.2d 450). County Court was entitled to reject defendant's version of the events “and, upon our review of the record, we cannot say that the court failed to give the evidence the weight that it should be accorded” (People v. Britt, 298 A.D.2d 984, 984, 748 N.Y.S.2d 297, lv denied 99 N.Y.2d 556, 754 N.Y.S.2d 208, 784 N.E.2d 81).

Defendant's contention in his main and pro se supplemental briefs regarding the legal sufficiency of the evidence before the grand jury is not properly before us. “Having failed to challenge the [legal] sufficiency of the trial evidence, defendant may not now challenge the [legal] sufficiency of the evidence before the grand jury” (People v. Wimberly, 86 A.D.3d 806, 807, 927 N.Y.S.2d 229, lv denied 18 N.Y.3d 863, 938 N.Y.S.2d 870, 962 N.E.2d 295; see People v. Smith, 4 N.Y.3d 806, 808, 796 N.Y.S.2d 1, 828 N.E.2d 958; see also CPL 210.30[6] ). Additionally, by affirmatively requesting that the court charge criminal possession of a weapon in the third degree as a lesser included offense of criminal possession of a weapon in the second degree, defendant waived the contention in his main brief that the court erred in doing so (see People v. Richardson, 88 N.Y.2d 1049, 1051, 650 N.Y.S.2d 633, 673 N.E.2d 918; People v. Carter, 38 A.D.3d 1291, 1292, 833 N.Y.S.2d 323).

We reject defendant's contention in his main brief that the five-year period of postrelease supervision imposed by the court for the robbery and burglary conviction renders his sentence unduly harsh and severe. As the People correctly concede, however, the determinate sentence and period of postrelease supervision imposed by the court for the conviction of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ), a nonviolent class D felony, is illegal (see §§ 70.45[1]; 70.06[3][d]; [4][b]; People v. Winfield, 83 A.D.3d 745, 746, 919 N.Y.S.2d 877). We therefore modify the judgment by vacating the sentence imposed for that conviction, and we remit the matter to County Court for resentencing on count three of the indictment.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed for criminal possession of a weapon in the third degree under the third count of the indictment and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing on that count of the indictment.

MEMORANDUM: